NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MYKOLA POPOVICH, No. 11-70068
Petitioner, Agency No. A089-551-471
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 9, 2014**
San Francisco, California
Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.
Mykola Popovich petitions for review of the Board of Immigration
Appeals’s (BIA) order dismissing his appeal of an Immigration Judge’s (IJ) denial
of his application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture (CAT). Because Popovich filed his asylum
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application after May 11, 2005, the Real ID Act applies. See Shrestha v. Holder,
590 F.3d 1034, 1039 (9th Cir. 2010). We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1).
The IJ’s adverse credibility finding was supported by substantial evidence,
including inconsistencies between Popovich’s testimony and his asylum
application. See Shrestha, 590 F.3d at 1039–40 (listing REAL ID Act credibility
factors, including “the consistency between the applicant’s or witness’s written and
oral statements”). For example, Popovich stated in his asylum application that he
saw young men running away from his violently damaged car, while at the hearing
he testified that he knew the perpetrators were with his persecutor because they
“were not even in a hurry to run away and they were threatening me that the same
thing that happened to the car would happen to me.” The BIA and IJ’s adverse
credibility determination was also supported by the implausibility of Popovich’s
testimony. See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005). Among
other things, Popovich testified that he made no effort to obtain critical
photographs he sent to himself via certified mail in Ukraine, which would have
provided compelling evidence supporting his asylum claim.
The BIA did not err in determining that, absent Popovich’s testimony, the
record does not sustain Popovich’s burden to show he is eligible for asylum due to
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persecution or a well-founded fear of persecution. See Deloso v. Ashcroft, 393
F.3d 858, 863–64 (9th Cir. 2005). For the same reason, the BIA’s denial of
Popovich’s claim for withholding of removal was supported by substantial
evidence. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). Nor did
the BIA err in concluding, based on the record without Popovich’s testimony, that
Popovich failed to sustain his burden to show eligibility for relief under CAT. See
Farah v. Ashcroft, 348 F.3d 1153, 1156–57 (9th Cir. 2003).
PETITION DENIED.
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